Welch v. Wolf ( 2024 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA BRENDAN WELCH, Plaintiff, 4:23CV3254 vs. MEMORANDUM AND ORDER S. WOLF, Officer #1393, Individual and Official Capacity; KYLE MEYERSON, Officer, Individual and Official Capacity; LANCASTER COUNTY DISPATCH, DOSTAL, Officer #1773, Individual and Official Capacity; and GARCIO, Officer #1977, Individual and Official Capacity; Defendants. Plaintiff Brendan Welch (“Plaintiff”), a prisoner, filed a Motion seeking to stay the case in its entirety until he is released from incarceration so he may file an amended complaint (the “Motion”). Filing No. 6. As cause for his Motion, Plaintiff submits that because of his recent incarceration he does not have access to the resources necessary to properly amend his complaint and likely will not until his release. Id. “While incarcerated individuals do have restricted rights in pursuing civil actions, reasonable alternatives to indefinite stays should be considered before granting a request to stay a matter until a plaintiff's release from confinement.” Devine v. Walker, No. 4:18- CV-4156, 2021 WL 3625308, at *2 (W.D. Ark. Aug. 16, 2021) (citing Muhammed v. Warden, Baltimore City Jail, 849 F.2d 107, 112 (4th Cir. 1988) (citing Wimberly v. Rogers, 557 F.2d 671, 673 (9th Cir. 1977))). However, this Court need not consider addressing Plaintiff’s Motion, as Plaintiff recently notified the Court of his release, Filing No. 10, rendering his Motion seeking a stay of the case due to his incarcerated status as moot. Plaintiff, however, also seeks leave to amend his complaint. Filing No. 6 at 1. Rule 15 of the Federal Rules of Civil Procedure provides “[t]he court should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). Due to the early stage in the proceedings, leave to amend shall be granted. Plaintiff shall have 30 days to file an amended complaint. IT IS THEREFORE ORDERED that: 1. Plaintiff's Motion, Filing No. 6, is granted in part and denied in part. Leave to amend the complaint is granted, but to the extent Plaintiff seeks to stay the case, the Motion is denied as moot. 2. Plaintiff now has through and until November 4, 2024, to file an amended complaint in compliance with this order. If Plaintiff fails to file an amended complaint or otherwise respond or seek an extension to do so prior to the expiration of the November 4, 2024, deadline, the Court shall perform an initial review of the claims set forth in Plaintiff's Complaint, Filing No. 1, to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2). 3. If Plaintiff seeks additional time to comply with this order, he must file a motion seeking an extension of time before the expiration of the November 4, 2024, deadline. 4. The Clerk's Office is directed to set a pro se case management deadline in this case using the following text: November 4, 2024: Check for amended complaint. Dated this 4th day of October, 2024. BY THE COURT: C4 F Shi Joseph F. Bataillon Senior United States District Court